David Patton, Tribal Law and Order Act of 2010: Breathing Life into the Miner’s Canary, 47 Gonz. L. Rev. 767 (2012)

[T]he Indian plays much the same role in our American society that the Jews played in Germany. Like the miner’s canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.

John Echohawk, a Pawnee Indian and the current executive director of the Native American Rights Fund, recently told Indian Country Today that he advises Native litigants to avoid taking their cases to the United States Supreme Court “because the high court ‘will reinterpret treaties and Indian law against [Indians],’ and some of the justices are ‘outright hostile.’” One might therefore think the canary is dead. However, the United States Congress recently passed into law the Tribal Law and Order Act of 2010 (“TLOA”), intended to assist Native American tribes in addressing lawlessness in Indian Country. The Act lends legitimacy to tribes’ visions of their justice systems and is a potential step toward true tribal self-determination.

While some have hailed the TLOA as “landmark legislation,” others call it “feel-good legislation.” Neither characterization, of course, is entirely accurate. In short, although the TLOA makes some meaningful changes, it is primarily a short- term fix. In many places it does not go far enough and some of the most important provisions of the Act may face difficulties in implementation.